Appeal by plaintiff from orders entered 4 October 2005, by
Judge Joseph R. John, and 17 January 2006, by Judge William Z.
Wood, Jr., in Forsyth County Superior Court. Heard in the Court of
Appeals 19 October 2006.
Ross Law Firm, by C. Thomas Ross, for plaintiff-appellant.
Bell, Davis & Pitt, P.A., by William K. Davis and Alan M.
Ruley, for defendants-appellees.
In 2003, plaintiff Louisa B. Whitaker and her siblings,
defendants John C. Whitaker, Jr., Elizabeth N. Whitaker, II, and
William A. Whitaker, settled four years of ongoing litigation
regarding the administration of their deceased mother's estate.
The resulting settlement judgment (the "Settlement Judgment") was
affirmed by this Court following an appeal by plaintiff. Whitaker
v. Whitaker, 169 N.C. App. 256, 611 S.E.2d 899, 2005 N.C. App.
LEXIS 579, 2005 WL 589482 (2005) (unpublished) (hereinafter
"Whitaker I"). Plaintiff now appeals from two orders of thesuperior court relating to the enforcement of the Settlement
Judgment's provision that allowed plaintiff to remove one-fourth of
the "fixtures" from the family home.
On appeal, plaintiff argues that the first of the trial
court's orders erred by concluding that the term "fixtures," as
used in the Settlement Judgment, did not include the entire house
located on the property as well as the living room flooring and
paneling. Plaintiff also contends that the trial court's first
order improperly concluded that plaintiff had waived her right to
seek additional fixtures beyond those she identified at a hearing
to construe the Settlement Judgment. As to the second order,
plaintiff argues that it erred by holding her in civil contempt of
the first order.
We conclude that the trial court, in the first order, properly
determined that the house and the living room flooring and paneling
were not fixtures, and we agree with the trial court that plaintiff
is precluded from seeking additional fixtures beyond those that she
specified in the hearing. Moreover, we find no error in the trial
court's decision to hold plaintiff in contempt of the first order
based on her removal of fixtures from the house without
authorization. The orders below are, therefore, affirmed.
In 1991, the parties' mother named defendant John Whitaker and
plaintiff as her attorneys-in-fact. In 1999, defendants filed a
petition alleging various acts of misfeasance by plaintiff and
sought to have her removed as an attorney-in-fact (the "SpecialProceeding"). The parties' mother died before this dispute was
An estate file was opened, and the mother's will was admitted
to probate (the "Estate Proceeding"). When the parties could not
agree on the administration of their mother's estate, they
participated in mediation with a retired superior court judge that
resulted in a handwritten Memorandum of Mediated Settlement
Agreement (the "Memorandum"). Plaintiff later refused to execute
any formalized version of the Memorandum.
Krispy Kreme Doughnut Corporation approached the parties about
the possibility of building Krispy Kreme's corporate headquarters
on a portion of real estate plaintiff and defendants had inherited
under their mother's will (the "Homesite"). Defendants and
plaintiff executed an Amendment to the Memorandum (the
"Amendment"), which provided that defendant John Whitaker would be
the sole spokesperson and negotiator for the family with Krispy
Kreme and that a vote of three out of the four siblings would be
binding on the entire group. Additionally, the Amendment provided
that defendants would voluntarily dismiss the Special Proceeding,
and the parties would "[t]ake such steps as are necessary" to begin
administration of their mother's estate, including appointing both
defendant John Whitaker and plaintiff as co-executors.
After extensive negotiations, a tentative agreement was
reached between defendant John Whitaker and Krispy Kreme, and
defendants executed the necessary documents for the sale of theHomesite. Despite the Amendment's requirement that plaintiff do
the same, she refused, and the sale to Krispy Kreme fell through.
Plaintiff instituted this action in superior court against
defendants, asserting three claims for relief: (1) breach of
contract, alleging that defendants had breached the Memorandum and
the Amendment; (2) breach of a separate trust agreement relating to
their mother's estate; and (3) a request for a declaratory judgment
that plaintiff was not bound by the terms of the Amendment.
Defendants counterclaimed for breach of contract, interference with
contract, unfair and deceptive trade practices, fraud, and punitive
The parties filed cross-motions for partial summary judgment
that were granted in part and denied in part, and the case
proceeded to trial. At the close of plaintiff's evidence, the
trial court granted a directed verdict for defendants on all but
one of plaintiff's claims. With defendants' counterclaims
remaining to be tried, the parties negotiated a settlement in which
plaintiff agreed to convey her interest in the Homesite to
defendants. The trial court thereafter convened a hearing at which
the attorneys read into the record the terms of the settlement,
which, among other things, included an agreement that: (1)
defendants would pay plaintiff $1.35 million; (2) plaintiff would
execute deeds prepared by defendants' counsel; and (3) within 60
days of the closing, plaintiff could remove from the Homesite one-
quarter of the "fixtures" and any shrubs or plants within a 500-
foot radius of the house. Plaintiff, however, ultimately refused to sign a written
settlement agreement. On 3 July 2003, defendants moved the trial
court for entry of a judgment consistent with the terms of the
settlement as stated on the record. The trial court granted the
motion, and, on 14 July 2003, Judge Russell G. Walker, Jr. entered
the Settlement Judgment, which set forth the terms of the
settlement and provided that the closing of the real estate
transaction would occur prior to 4 January 2004 unless otherwise
agreed. Plaintiff appealed, and this Court affirmed the Settlement
Judgment in Whitaker I
The parties waited for this Court's March 2005 decision in
before closing and, as a result, missed the 4 January
2004 closing date provided for in the Settlement Judgment. Even
following Whitaker I
, however, plaintiff would still not agree to
a closing date for the sale of the Homesite. Instead, plaintiff
filed a "Motion to Construe" the Settlement Judgment
, requesting an
interpretation of the term "fixtures." In response, defendants
filed a motion seeking to compel plaintiff to close, to hold her in
contempt, and for sanctions.
(See footnote 1)
A hearing before Judge Joseph R. John was held on both motions
on 23 September 2005. At the hearing, Judge John asked plaintiff's
counsel if he could "identify specifically what items may be in
controversy." Although plaintiff's counsel broadly argued that
"the house itself was a fixture,"
he specifically stated that
plaintiff was really only seeking "light fixtures and things like
that," as well as the "[f]looring, paneling, cabinets, [and] doors"
from the home's living room so plaintiff could "try to recreate
that room where she lives now," and "[s]ome cabinets from the
kitchen," "doors to the cabinets in the butler's pantry," and two
light fixtures in the dining room. Judge John asked whether there
was "[a]nything else" and plaintiff's counsel responded, "That is
all, Your Honor." Defendants, in turn, argued that there was no
ambiguity in the Settlement Judgment and requested that the trial
court set a closing date and sanction plaintiff for delaying the
On 4 October 2005, Judge John filed an order concluding that
plaintiff's counsel's argument at the hearing had limited the
court's inquiry to a determination whether the following items were
fixtures: (1) the living room flooring, paneling, cabinets, doors,
and windows; (2) kitchen cabinets; (3) doors to the cabinets in the
butler's pantry; and (4) two light fixtures in the dining room. As
to these items, Judge John concluded that the living room flooring
and paneling were not fixtures, but he was unable to decide whether
the remaining items were fixtures without an evidentiary hearing.
Judge John specified in his order that either party could requestsuch a hearing. Judge John also determined that plaintiff was
precluded from removing any additional fixtures other than those
she had identified at the hearing, set the closing on the Homesite
for 31 October 2005, and declined to impose any sanctions upon
Neither party requested an evidentiary hearing prior to the 31
October 2005 closing date. Nevertheless, on 31 October 2005,
plaintiff declined to close unless defendants provided her with
"acknowledgments" that, following delivery of the deeds, plaintiff
would retain her rights to obtain property and fixtures from the
Homesite under the Settlement Judgment. Defendants declined to do
so, and the closing did not occur as scheduled. Plaintiff
thereafter appealed Judge John's order and delivered the required
deeds to the clerk of superior court "to be held in safe keeping .
. . until a final decision by an Appellate Court in North
On 2 November 2005, defendants filed a motion seeking delivery
of the deeds, an order holding plaintiff in contempt of both the
Settlement Judgment and Judge John's order, and the imposition of
sanctions. In response to defendants' notice of hearing, plaintiff
filed a written objection, arguing that the trial court lacked
jurisdiction as a result of plaintiff's appeal of Judge John's
order. At the 10 November 2005 hearing on defendants' motion
before Judge William Z. Wood, Jr., plaintiff argued that Judge
John's order had impermissibly changed several of the provisions ofthe Settlement Judgment. Shortly after the hearing, however, the
parties completed the closing.
On 14 November 2005, Judge Wood entered an order noting that
the deeds had in fact been delivered and that plaintiff would not
relinquish any rights she had under the Settlement Judgment to any
property or fixtures from the Homesite as a result of her delivery
of the deeds. Judge Wood also refused to revisit Judge John's
rulings with respect to the Settlement Judgment and declined to
find plaintiff in contempt. Judge Wood's order further concluded
that the trial court still had jurisdiction to enforce the
Settlement Judgment and ordered all parties to comply with
Paragraph 1(c) of that judgment, which provided that:
Within sixty (60) days of closing, Plaintiff
shall have the right, at Plaintiff's sole
expense, to remove from the main house on the
Homesite property one-fourth (1/4), by
quantity, of: (1) the fixtures; and (2) any
shrubs or plantings within a radius of five
hundred feet (500') thereof . . . .
As a result of the 10 November 2005 closing, plaintiff's right to
remove property determined to be fixtures was due to expire on 9
On 16 December 2005, plaintiff filed a motion requesting, as
provided in Judge John's order, an evidentiary hearing to determine
"what are or are not removable fixtures" and seeking an extension
of the Settlement Judgment's 60-day deadline. Although plaintiff
originally sought to have her motion heard 3 January 2006, she
later filed an amended calendar request seeking a 9 January 2006
hearing _ the same day her 60-day window was due to close. Theevidentiary hearing, however, never occurred, and plaintiff never
obtained an extension or stay of the deadline to remove fixtures.
Instead, plaintiff arrived at the Homesite on 7 and 8 January
2006 and removed numerous items herself. Defendants filed a motion
to show cause why plaintiff should not be held in contempt of Judge
John's order and, at a 10 January 2006 hearing before Judge Wood,
defendants submitted affidavits and photographs showing that
plaintiff had taken wrought iron plates from the exterior of the
front door; the doors from the cabinets in the dining room, the
butler's pantry, and the kitchen; the knobs from the drawers in the
butler's pantry and the kitchen; and the hardware from the built-in
cabinets in the living room and library. Plaintiff's counsel
presented no evidence, explaining only that he had told plaintiff
to engage in this self-help remedy because he was "afraid the 60
days was going to run."
On 17 January 2006, Judge Wood filed an order (the "Contempt
Order") holding plaintiff in willful contempt of Judge John's
order. To purge herself of contempt, Judge Wood ordered plaintiff
to return and re-install the items she had removed. Judge Wood
also provided that, following the return and re-installation, the
parties could again seek the evidentiary hearing originally
provided for by Judge John's order. Plaintiff appealed the
Contempt Order to this Court and moved the trial court to
consolidate her appeals of both the Contempt Order and Judge John's
order. The trial court granted plaintiff's motion on 30 January
We must first determine whether this Court has jurisdiction
over plaintiff's appeal. With respect to both orders, a decision
that "on its face contemplates further proceedings or which does
not fully dispose of the pending stage of the litigation is
interlocutory." Watts v. Hemlock Homes of the Highlands, Inc.
N.C. App. 81, 84, 584 S.E.2d 97, 99 (2003). There is generally no
right to appeal an interlocutory order. Howerton v. Grace Hosp.,
, 124 N.C. App. 199, 201, 476 S.E.2d 440, 442 (1996).
Here, Judge John's order declined to resolve the entire
controversy and, instead, left it to the parties to seek an
evidentiary hearing to address the remaining issues. Similarly,
although the Contempt Order resolves the issue of contempt, it
likewise allows for further evidentiary hearings. Such orders are
plainly interlocutory. See, e.g.
, Alexander v. DaimlerChrysler
, 158 N.C. App. 637, 643, 582 S.E.2d 57, 61 (2003) (trial
court's order declining to approve or disapprove a settlement and
voluntary dismissal and, instead, concluding that "a review of the
dismissal was necessary," was interlocutory); McGinnis v. McGinnis
44 N.C. App. 381, 387, 261 S.E.2d 491, 495 (1980) (trial court's
order was interlocutory when it enforced out-of-state judgments and
ordered additional evidentiary hearings).
An interlocutory order is subject to immediate appeal only if
(1) the order is final as to some but not all of the claims or
parties, and the trial court certifies the case for appeal pursuant
to Rule 54(b) of the Rules of Civil Procedure, or (2) the trialcourt's decision deprives the appellant of a substantial right that
will be lost absent immediate review. Howerton
, 124 N.C. App. at
201, 476 S.E.2d at 442. In the present case, however, neither
order includes a Rule 54(b) certification and, accordingly,
plaintiff must establish that the orders affect a substantial
right. See Jeffreys v. Raleigh Oaks Joint Venture
, 115 N.C. App.
377, 380, 444 S.E.2d 252, 254 (1994) ("[T]he appellant has the
burden of showing this Court that the order deprives the appellant
of a substantial right which would be jeopardized absent a review
prior to a final determination on the merits.")
With respect to the Contempt Order, "[t]he appeal of any
contempt order . . . affects a substantial right and is therefore
immediately appealable." Guerrier v. Guerrier
, 155 N.C. App. 154,
158, 574 S.E.2d 69, 71 (2002). See also
N.C. Gen. Stat. § 5A-24
(2005) ("A person found in civil contempt may appeal in the manner
provided for appeals in civil actions."). Consequently, this Court
may consider plaintiff's appeal of the Contempt Order irrespective
of the fact that it provides for further proceedings.
As to Judge John's order, plaintiff argues that when and if
the evidentiary hearing is held, the trial court may conclude that
Judge John's order did not use "the proper standard by which to
determine what is a fixture," and, therefore, there is "a very real
possibility" of "inconsistent verdicts as to what are 'fixtures.'"
It is true that "[a] substantial right is affected when '(1) the
same factual issues would be present in both trials and (2) the
possibility of inconsistent verdicts on those issues exists.'" Inre Estate of Redding v. Welborn
, 170 N.C. App. 324, 328, 612 S.E.2d
664, 668 (2005) (quoting N.C. Dep't of Transp. v. Page
, 119 N.C.
App. 730, 735-36, 460 S.E.2d 332, 335 (1995)).
even assuming arguendo
that such a decision
would amount to an inconsistent verdict, plaintiff's argument
overlooks the well-settled principle that one superior court judge
may not overrule another. State v. Woolridge
, 357 N.C. 544, 549,
592 S.E.2d 191, 194 (2003). As a subsequent superior court judge
could not rule contrary to Judge John's order, there is no
possibility of inconsistent verdicts merely because Judge John
issued a ruling with which plaintiff disagreed. To hold otherwise
would allow interlocutory appeals in all instances. As a result,
we conclude that Judge John's order does not impact plaintiff's
substantial rights, and, therefore, that plaintiff's appeal as to
that order is interlocutory.
(See footnote 2)
Under N.C.R. App. P. 21(a)(1), however, a "writ of certiorari
may be issued in appropriate circumstances by [an] appellate court
to permit review . . . when no right of appeal from an
interlocutory order exists . . . ." This Court, therefore, has
discretion under Rule 21 to "treat [a] purported appeal as a
petition for writ of certiorari and address the merits." Mack v.Moore
, 91 N.C. App. 478, 480, 372 S.E.2d 314, 316 (1988), disc.
, 323 N.C. 704, 377 S.E.2d 225 (1989). See also Brown
v. City of Winston-Salem
, 171 N.C. App. 266, 269, 614 S.E.2d 599,
601 (reaching merits of interlocutory appeal by granting certiorari
under N.C.R. App. P. 21), cert. denied
, 360 N.C. 60, 621 S.E.2d 176
The materials in the record, spanning seven years of
litigation, indicate that plaintiff's primary goal in Whitaker I
, and the present action has been to delay resolution of
the issues surrounding her mother's estate, including the sale of
the Homesite by defendants. Although plaintiff initially agreed to
the terms of the Settlement Judgment in open court, requiring her
to sell her interest in the Homesite to defendants, she later
reneged on that agreement and appealed the trial court's entry of
judgment in accordance with those terms. After this Court rejected
her appeal in Whitaker I
, plaintiff continued to subvert the effect
of the Settlement Judgment by refusing to comply with its terms,
and engaging in a self-help removal of items from the Homesite.
She even attempted to void both the Settlement Judgment and
altogether by filing a collateral challenge in the
Estate Proceeding to the subject matter jurisdiction of the trial
court to adjudicate a lawsuit she originally filed
_ an argument
this Court later rejected in Whitaker II
. Now, plaintiff has filed
an interlocutory appeal.
Dismissing plaintiff's appeal of Judge John's order would
impose a manifest injustice upon defendants by assisting plaintiffwith her apparent long-running agenda of delay. Moreover, as
dismissal would undoubtedly only result in a future appeal of the
same issues, it would also be a waste of judicial resources.
Accordingly, under the extraordinary circumstances of this case, we
exercise our discretion under Rule 21 to issue a writ of certiorari
and consider the merits of plaintiff's appeal of Judge John's
We turn now to the Contempt Order. Plaintiff first argues
that this order must be reversed because the hearing failed to
comply with the procedural requirements of N.C. Gen. Stat. § 5A-
23(a) (2005), which provides that "notice [of a contempt hearing]
must be given at least five days in advance of the hearing . . . ."
The contempt hearing in the present case was held only one day
after defendants' show cause motion was filed, apparently in place
of the evidentiary hearing that plaintiff herself had calendared on
22 December 2005.
Nevertheless, "when the contemnor [comes] into court to answer
the charges of the show cause order, [s]he waive[s] procedural
requirements." Lowder v. All Star Mills, Inc.
, 301 N.C. 561, 583,
273 S.E.2d 247, 260 (1981). Plaintiff attended the contempt
hearing, did not object to the trial court's hearing of defendants'
show cause motion, and made no effort to pursue her previously-
noticed request for an evidentiary hearing on the disputed
fixtures. Indeed, at the hearing, plaintiff actively disputed
defendants' motion and made arguments on the issue to the trialcourt. We conclude that plaintiff's attendance and participation
without objection waived any procedural objections to the contempt
Plaintiff next argues that, notwithstanding any procedural
irregularities, she was not in contempt. Failure to comply with a
court order is a continuing civil contempt as long as: (1) the
order remains in force; (2) the purpose of the order may still be
served by compliance with the order; (3) the noncompliance by the
person to whom the order is directed is willful; and (4) the person
to whom the order is directed is able to comply with the order or
is able to take reasonable measures that would enable the person to
comply with the order. N.C. Gen. Stat. § 5A-21(a) (2005). "This
Court's review of a trial court's finding of contempt is limited to
a consideration of 'whether the findings of fact by the trial judge
are supported by competent evidence and whether those factual
findings are sufficient to support the judgment.'" Gen. Motors
Acceptance Corp. v. Wright
, 154 N.C. App. 672, 677, 573 S.E.2d 226,
229 (2002) (quoting McMiller v. McMiller
, 77 N.C. App. 808, 810,
336 S.E.2d 134, 136 (1985)).
Of the elements of contempt, plaintiff challenges only the
first and third, arguing that Judge John's order was no longer in
force and that, in any event, she did not violate it willfully.
With respect to whether the order was still in force, plaintiff
contends that her appeal of Judge John's order divested the trial
court of jurisdiction to hold her in contempt. A party may
generally not be held in contempt for "violating the very orderthen being questioned on appeal." Upton v. Upton
, 14 N.C. App.
107, 109, 187 S.E.2d 387, 389 (1972). See also
N.C. Gen. Stat. §
1-294 (2005) ("When an appeal is perfected . . . it stays all
further proceedings in the court below upon the judgment appealed
from, or upon the matter embraced therein[.]").
When, however, the order being appealed from is interlocutory,
the trial court is not divested of jurisdiction and can, therefore,
properly hold a party in contempt for violating the order. See
Onslow County v. Moore
, 129 N.C. App. 376, 387-88, 499 S.E.2d 780,
788, disc. review denied
, 349 N.C. 361, 525 S.E.2d 453 (1998). See
also Bruggeman v. Meditrust Co., LLC
, 165 N.C. App. 790, 794, 600
S.E.2d 507, 510 (2004) ("[I]t is well established that where an
appeal is interlocutory, the trial court need not stay its
proceedings while an appellate court decides the appeal."). As
plaintiff's appeal of Judge John's order was interlocutory, the
trial court could properly hold plaintiff in contempt for
violations of that order.
With respect to whether plaintiff's non-compliance was
willful, "willful" has been defined in the context of contempt as
"disobedience which imports knowledge and a stubborn resistance,
and as something more than an intention to do a thing. It implies
doing the act purposely and deliberately, indicating a purpose to
do it, without authority _ careless whether [the contemnor] has the
right or not _ in violation of law . . . ." Hancock v. Hancock
122 N.C. App. 518, 523, 471 S.E.2d 415, 418 (1996) (alteration and
omission in original) (internal quotation marks omitted). Plaintiff does not contest that she willfully removed the items
from the Homesite, but, rather, that Judge John's order was so
"ambiguous" that plaintiff's non-compliance could not have been
willful. See Blevins v. Welch
, 137 N.C. App. 98, 103, 527 S.E.2d
667, 671 (2000) (noting that willfulness may be negated "[i]f the
prior order is ambiguous such that a [party] could not understand
his respective rights and obligations under that order").
We, however, find no ambiguity in Judge John's order, which
specifically provided, among other things, that: (1) plaintiff had
waived her right to seek fixtures beyond those she requested at the
hearing and (2) that Judge John was unable to determine whether
most of the items plaintiff sought were in fact fixtures without an
evidentiary hearing. Without a determination, following an
evidentiary hearing, that the items were fixtures, plaintiff had no
authority to remove them.
As there was no possibility that plaintiff failed to
understand her rights and obligations under these rulings,
defendants' affidavits and photographs providing evidence of
plaintiff's subsequent removal from the Homesite of both items that
she had not requested at the hearing (such as the wrought iron
plates from the exterior of the front door) and that Judge John had
specifically deferred ruling upon without an evidentiary hearing
(such as the doors from the cabinets in the butler's pantry)
provided ample evidence to support Judge Wood's finding that
plaintiff had willfully violated Judge John's order. Compare id.
at 101-03, 527 S.E.2d at 670-71 (finding prior order was ambiguouswhen it could reasonably be interpreted as including prescriptive
easement covering either or both of two roads, and, therefore, that
the defendants could not be in contempt of that order for behaving
as if it included only one). Accordingly, this assignment of error
We next turn to plaintiff's argument that Judge John erred in
his order by not concluding that the Homesite's living room
flooring and paneling, and the house itself, were "fixtures" under
the Settlement Judgment. We note at the outset that this case
presents an unusual scenario. Under the terms of the parties'
Settlement Judgment, plaintiff is entitled to remove one-quarter of
the "fixtures" located at the Homesite. This reverses the
situation presented in most disputes involving fixtures, in which
an item is deemed to be a "fixture" specifically because it is not
removable. See, e.g.
, Moore's Ferry Dev. Corp. v. City of Hickory
166 N.C. App. 441, 445, 601 S.E.2d 900, 903 (noting the traditional
definition of a fixture as being personal property attached to land
or a building in such a way as to become an irremovable part of the
real property), disc. review denied
, 359 N.C. 191, 607 S.E.2d 277
(2004). Additionally, unlike more traditional cases applying the
general law of fixtures, the present case involves the parties' use
of the term "fixtures" in their Settlement Judgment, and,
therefore, presents an issue of interpretation. Accordingly, we
limit our holding on this issue to the facts of this case. Although "[a] court with authority to render a judgment also
has power to construe and clarify its own judgments," Reavis v.
, 82 N.C. App. 77, 80, 345 S.E.2d 460, 462 (1986), such
interpretation is a question of law that is fully reviewable on
, 137 N.C. App. at 101, 527 S.E.2d at 670.
Moreover, "'[w]hen a court is called upon to interpret, it seeks to
ascertain the intent of the parties at the moment of execution.'"
Cater v. Barker
, 172 N.C. App. 441, 445, 617 S.E.2d 113, 116 (2005)
(quoting Briggs v. Am. & Efird Mills, Inc.
, 251 N.C. 642, 644, 111
S.E.2d 841, 843 (1960)), aff'd per curiam
, 360 N.C. 357, 625 S.E.2d
778 (2006). When the plain language is clear, "the original
intention of the parties is inferred from its words." Potter v.
Hilemn Labs., Inc.
, 150 N.C. App. 326, 331, 564 S.E.2d 259, 263
As to whether the house itself is a "fixture," Paragraph 1(c)
of the Settlement Judgment provides:
Within sixty (60) days of closing, Plaintiff
shall have the right . . . to remove from the
on the Homesite property one-fourth
. . . [of] the fixtures
. . . .
(Emphases added.) This wording plainly indicates that the parties
did not intend the term "fixture" to encompass the house itself.
We decline to adopt plaintiff's interpretation of this provision
and refuse to hold that the parties intended the Settlement
Judgment to grant plaintiff the authority "to remove from the main
house" one-quarter of the house itself. See Avrett & Ledbetter
Roofing & Heating Co. v. Phillips
, 85 N.C. App. 248, 253, 354
S.E.2d 321, 324 (1987) ("Instruments should receive sensible andreasonable constructions and not ones leading to absurd or unjust
results."). Accordingly, Judge John did not err by rejecting
plaintiff's argument that the house was not a "fixture" under the
This conclusion also resolves plaintiff's argument regarding
the living room flooring and paneling. Judge John made the
following finding of fact with respect to the flooring and
7. There was no suggestion by any of the
parties that the flooring and paneling in the
living room was installed at anytime except at
the time of construction of the Homeplace.
These items are construction materials and
part of the realty. They are not fixtures, as
a matter of fact or law, and the Court
accordingly so holds. In addition, the Court
observes that there is little likelihood that
items such as the flooring and paneling could
be severed from the realty without causing
Although not specifically assigning error to this finding of fact,
plaintiff stated in her first assignment of error that Judge John
"erred in holding that flooring and paneling were not fixtures
under the factual circumstances existing in May and July 2003, as
being contrary to the evidence as to the intent of the parties at
From a review of the transcript, it appears that plaintiff
took the position before Judge John that she was entitled to one-
fourth of the entire house and that she intended to remove the
living room intact _ including walls and floors _ to recreate it
elsewhere. Defendants' counsel argued in response, and Judge John
found, that doing so would destroy the house. Plaintiff has notargued otherwise, but rather continues to argue that destruction of
the house was the intent of the parties. Neither at trial nor on
appeal has plaintiff offered any other basis for finding that the
living room flooring and paneling are "fixtures" within the meaning
of the Settlement Judgment. Indeed, she states in her brief: "If
an entire home can be removed pursuant to the parties' contractual
intent, then the parties in this case could have intended, as
Appellant strenuously contends, that the flooring and paneling were
removable fixtures, irrespective of the fact that the flooring and
paneling were part of the original construction at the time of
Because we have held that the plain language of the Settlement
Judgment precludes plaintiff's contention that the entire house is
a fixture, we necessarily must conclude that plaintiff has failed
to demonstrate that Judge John erred in concluding that she could
not remove the living room flooring and paneling.
(See footnote 3)
we overrule these assignments of error.
Plaintiff next contends that by concluding she had waived her
right to seek additional fixtures, Judge John both exceeded his
authority and improperly overruled Judge Walker's Settlement
Judgment. As to whether Judge John exceeded his authority by
determining that plaintiff could not seek additional fixtures,
"[i]n order to preserve a question for appellate review, a party
must have presented to the trial court a timely request . . .,
stating the specific grounds for the ruling the party desired the
court to make if the specific grounds were not apparent from the
context." N.C.R. App. P. 10(b)(1).
Plaintiff filed her motion to construe the Settlement Judgment
because "the parties ha[d] been unable to reach agreement as to the
terms of the [Settlement] Judgment . . . having to do with various
property and fixtures . . . ." Judge John began the hearing by
asking plaintiff if she would "identify specifically what items may
be in controversy." When plaintiff's counsel responded only
generally, Judge John replied:
You're doing exactly what I asked you not to
do. I want to know flooring in what room,
light fixtures in what room, and so forth. We
need to know what we are talking about here.
I suspect _ I may be wrong, but I suspect
that's been part of the problem with this
dispute coming back before the court.
Plaintiff's counsel then specified the property that plaintiff
sought to have declared as fixtures. Judge John asked whether
there was "[a]nything else," and plaintiff's counsel responded,
"That is all, Your Honor." Plaintiff, therefore, limited the scopeof Judge John's inquiry only to a consideration of whether the
enumerated items were fixtures.
Following Judge John's ruling at the close of the hearing that
plaintiff had waived her right to claim any additional fixtures,
plaintiff argued _ consistent with her general approach of avoiding
finality _ that she had not meant to surrender her right under the
Settlement Judgment to claim, at a later date, that other items
were fixtures. In other words, plaintiff had hoped not to be
required to identify all of the fixtures she sought, but, rather,
to leave open the opportunity for further litigation as to fixtures
in the future.
Plaintiff contends that this aspect of Judge John's order
effectively overruled the Settlement Judgment's provision that
plaintiff could remove one-fourth of the fixtures at the Homesite
within 60 days of the closing. "[I]t is well established in our
jurisprudence that no appeal lies from one Superior Court judge to
another; that one Superior Court judge may not correct another's
errors of law; and that ordinarily one judge may not modify,
overrule, or change the judgment of another Superior Court judge
previously made in the same action." Woolridge
, 357 N.C. at 549,
592 S.E.2d at 194 (internal quotation marks omitted).
Judge John's order did not, however, overrule the Settlement
Judgment, which remains in full force and effect. Compare id.
550, 592 S.E.2d at 194 (concluding one superior court judge
improperly overruled another when trial court "initially grant[ed]
defendant's motion to suppress and, upon reconsideration by adifferent judge, den[ied] the motion to suppress"). Rather, Judge
John merely construed the Settlement Judgment, as requested by
plaintiff's motion. As noted above, "[a] court with authority to
render a judgment also has power to construe and clarify its own
, 82 N.C. App. at 80, 345 S.E.2d at 462.
Given that plaintiff calendared the hearing so that the court
could determine for the parties what properly constituted fixtures
within the meaning of the Settlement Judgment, she cannot now
complain that Judge John, in deciding her motion, required her to
identify what property was at issue. Indeed, this approach is
required by N.C.R. App. P. 10(b) ("In order to preserve a question
for appellate review, a party must have presented to the trial
court a timely request, . . . stating the specific grounds
ruling the party desired the court to make . . . ." (emphasis
added)). These assignments of error are overruled.
"A court of the appellate division may, on its own initiative
or motion of a party, impose a sanction against a party or attorney
or both when the court determines that an appeal or any proceeding
in an appeal was frivolous because . . . the appeal was taken or
continued for an improper purpose, such as to harass or to cause
unnecessary delay or needless increase in the cost of
litigation[.]" N.C.R. App. P. 34(a). As we conclude that
plaintiff's appeal was taken for an improper purpose, we remand for
the entry of sanctions against both plaintiff and her counsel underN.C.R. App. P. 34(c). McGowan v. Argo Travel, Inc.
, 131 N.C. App.
694, 695, 507 S.E.2d 601, 602 (1998).
It is apparent from the record that plaintiff's primary goal
in the present action _ as well as Whitaker I
and Whitaker II
been to delay resolution of the issues surrounding her mother's
estate, including the sale of the Homesite. To accomplish this
goal, plaintiff has engaged the courts of this State in extensive
and inappropriate legal gamesmanship, including: the refusal to
comply with the Amendment; the refusal to comply with the terms of
the Settlement Judgment; attempts to void the Settlement Judgment
following its affirmance in Whitaker I
; an attempt to litigate the
identity of the Homesite's fixtures on a piecemeal basis; the
filing of an improper interlocutory appeal interposed to divest the
trial court of jurisdiction; nonetheless calendaring an evidentiary
hearing on the day her 60-day window for removal of fixtures was to
expire; and, rather than proceeding with that hearing, engaging in
a self-help remedy that apparently defaced the Homesite and was in
violation of a court order.
Moreover, in addition to the pattern of conduct set out in the
record that suggests an intent to delay, we are troubled by the
fact that plaintiff has routinely taken inappropriately
inconsistent positions throughout this and the related litigation
without ever acknowledging that she has done so. These
inconsistent positions likewise appear directed more towards
delaying the proceedings than litigating plaintiff's legal
interests. Cf. Whitacre P'ship v. BioSignia, Inc.
, 358 N.C. 1, 22,591 S.E.2d 870, 884 (2004) (noting that, under the doctrine of
judicial estoppel, "'[w]here a party assumes a certain position in
a legal proceeding, and succeeds in maintaining that position, he
may not thereafter, simply because his interests have changed,
assume a contrary position'" (quoting New Hampshire v. Maine
U.S. 742, 749, 149 L. Ed. 2d 968, 977, 121 S. Ct. 1808, 1814
Following the collapse of the Krispy Kreme deal, plaintiff
filed suit against defendants and appealed certain provisions of
the Settlement Judgment. In that appeal, plaintiff did not seek to
have the entire judgment reversed _ for example, plaintiff did not
challenge the Settlement Judgment's provisions relating to her
being paid $1.35 million or being allowed to remove fixtures from
the Homesite. After this Court rejected plaintiff's appeal in
, however, plaintiff changed position in Whitaker II
argued that the trial court in Whitaker I
had lacked subject matter
jurisdiction to adjudicate the very lawsuit she had filed
therefore, that both the entire Settlement Judgment and Whitaker I
were void. Now, in the present appeal _ filed prior to this
Court's decision in Whitaker II
_ plaintiff contends that Judge
John's order must be reversed because it limits plaintiff's rights
under the Settlement Judgment. In other words, while plaintiff
argued in Whitaker II
that the Settlement Judgment was void,
plaintiff simultaneously argued in the present appeal that Judge
John's order was void as contrary to the Settlement Judgment. Similarly, although plaintiff argues on this appeal that the
Contempt Order is invalid because her appeal of Judge John's order
stayed proceedings in the trial court, plaintiff nevertheless,
after her appeal, calendared the evidentiary hearing provided for
in Judge John's order. Thus, according to plaintiff, although her
appeal of Judge John's order stayed the order's effect insofar as
holding her in contempt, her appeal did not stay the order with
respect to her ability to obtain an evidentiary hearing.
We hold that the conduct of both plaintiff and her counsel,
dedicated not to the proper resolution of disputed legal issues but
to delay, amounts to the repeated pursuit of an improper purpose
and runs afoul of N.C.R. App. P. 34(a). See, e.g.
N.C. App. at 695, 507 S.E.2d at 601 (imposing sanctions when case
was "one in a long progeny of cases" involving the same parties and
issues). Accordingly, we hold that defendants should be awarded
reasonable attorneys' fees for the time spent in defending this
appeal. We remand the matter to the trial court for a
determination of reasonable attorneys' fees with the award to be
imposed jointly against plaintiff and her counsel. N.C.R. App. P.
Judges STEELMAN and STEPHENS concur.
Report per Rule 30(e).